FEDERAL COURT OF AUSTRALIA CSY16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 294 Appeal from: CSY16 v Minister for Home Affairs & Anor [2019] FCCA 1040 File number: NSD 669 of 2019 Judge: YATES J Date of judgment: 11 March 2020 Catchwords: MIGRATION – Safe Haven Enterprise visa - review of Immigration Assessment Authority decision – whether Authority misconstrued s 473DD of the Migration Act 1958 (Cth) - no jurisdictional error Legislation: Migration Act 1958 (Cth) s 473DD Date of hearing: 11 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Appellant: The appellant appeared in person, with the aid of an interpreter Counsel for the Respondents: Mr D H Hughes Solicitor for the Respondents: DLA Piper ORDERS NSD 669 of 2019 BETWEEN: CSY16 Appellant AND: MINISTER FOR HOME AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGE: YATES J DATE OF ORDER: 11 MARCH 2020 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT YATES J: INTRODUCTION 1 On 30 September 2015, the appellant applied for a protection visa (a Safe Haven Enterprise visa). The application was refused by a delegate of the Minister for Home Affairs (the Minister). The decision was referred to the second respondent, the Immigration Assessment Authority (the IAA), for review. The review was unsuccessful, but that decision was quashed by the Federal Circuit Court of Australia (the Federal Circuit Court) and the review was remitted to the IAA for reconsideration. On reconsideration, the IAA again affirmed the delegate's decision. 2 The appellant then applied to the Federal Circuit Court for judicial review of the IAA's new decision. The Federal Circuit Court was not persuaded that the IAA's new decision was affected by jurisdictional error and dismissed the application. The appellant now appeals to this Court from the Federal Circuit Court's judgment. 3 There are two grounds of appeal. They relate to the IAA's decision not to consider "new information" when carrying out its review. In this connection, s 473DD of the Migration Act 1958 (Cth) (the Act) provides: For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 4 The first ground of appeal, as particularised, is that the IAA did not engage fully with the issue of "exceptional circumstances" referred to in s 473DD. The material sought to be advanced concerned serious issues which could have affected the outcome of the review and, according to the appellant, the IAA relied upon the lateness of the submission of the new information as the primary reason for not considering it. Thus, the appellant says, the IAA did not carry out a meaningful review. 5 The second ground of appeal is that the Federal Circuit Court should have found that the IAA fell into error by failing to take into account and ignoring the roles and associations of the appellant's brother and sister with the Liberation Tigers of Tamil Eelam (the LTTE). Background 6 The appellant is a citizen of Sri Lanka who arrived in Australia by boat on 17 September 2012. His claim for protection was summarised by the IAA as: (a) his Tamil ethnicity; (b) his religion; (c) the fact that he came from an area once under the control of the LTTE and the fact that he spent time in Vanni in 2006; (d) his involvement with the Saint Peter's Church congregation and a fishermen's organisation; (e) his illegal departure from Sri Lanka and illegal entry into Australia; (f) the fact that he would be returned to Sri Lanka as a failed asylum seeker; (g) the time spent by him living in Australia; (h) his ability to earn a living; and (i) the fact that he voted for the Eelam People's Democratic Party. 7 On 25 August 2016, the IAA received submissions from the appellant's representative. Amongst other things, the submissions contained new information. It is convenient to quote the paragraphs of the IAA's Decision Record as they relate to the grounds of appeal: 6. The submissions contained new information that the applicant's uncle was involved with the Liberation Tigers of Tamil Eelam (LTTE), the applicant's brother KJ served as a 2nd Lieutenant in the LTTE from 1991 to 1992 and the applicant's sister MJ joined the LTTE on 2 September 1995 and was released by them on 18 September 1998. 7. The applicant submitted that KJ's LTTE name was Pranayan (Phillip) and he was killed by the SLA. In support of this claim he provided a document in English that stated LTTE 2nd Lieutenant Pranayan Arulappu (unreadable) born on 5 April 1972 died during a battle on 30 June 1992. Likewise, the applicant submitted that his sister MJ is in hiding and her husband fled to Australia. The applicant believes his sister's husband obtained a temporary protection visa. 8. The applicant said he did not disclose his uncle's, brother's or sister's involvement with the LTTE prior to the delegate's decision because he had been told in the detention centre that Australia views individuals with links to the LTTE as terrorists and he was scared he would be locked up indefinitely or deported immediately to Sri Lanka. He was also fearful of anyone in a position of authority or anyone associated with the government because of his experiences in Sri Lanka. 9. The applicant has been living in the community for a number of years and he was assisted by the Refugee Advice and Casework Services in 2013 to prepare his first protection visa application. At the beginning of the SHEV interview, the delegate advised the applicant that it was his responsibility to raise all his claims and that, if his application was refused, he may not be able to raise additional claims or change the details of his claims at a later date. Given the applicant had legal assistance in the past and was put on notice that he needed to raise all his claims and may not have another opportunity to do so, I find it incredible and do not accept that he did not disclose the new information about his brother's, sister's and uncle's LTTE connection sooner because he was scared of people in authority or associated with the government or because he was scared of being locked up or deported. 10. The applicant stated in his arrival interview that his brother KJ died in 1992/1993 when he was shot by the Sri Lankan navy (SLN) or the Sri Lankan army (SLA) when he was fishing. He died at sea. The applicant stated in his statutory declaration dated 29 September 2015 that his brother was killed in 1992 by a bomb blast on his way to work. The applicant stated in his visa applications in 2013 and in 2015 that KJ was born on 4 September 1974 and died on 18 September 1992. 11. The new information provided about the applicant's brother is the third version of how his brother died. The document in support of his brother being a member of the LTTE lists KJ's year of birth as 1972 but the applicant has consistently indicated that KJ was born in 1974. Likewise, the document indicates that KJ died on 30 June 1992 but the applicant has consistently indicated that KJ died in September 1992. 12. The information about the applicant's brother could have been provided before the delegate made the decision and I did not accept the applicant's reasons for its late disclosure. His purported reasons do not explain the inconsistent evidence about KJ's year of birth and the month of his death. This raises questions about the reliability and corroborative value of the new information. In all the circumstances, I am not satisfied that there are exceptional circumstances to justify considering this new information and I have not had regard to it. 13. The applicant's claims about his sister's involvement with the LTTE are – apart from the specific dates of her purported service – general and vague. There are no details about MJ's role in the LTTE, whether she was forced to join the LTTE or joined voluntarily or why she was released by them on 1998. There are no details about why MJ is in hiding, how long she has been in hiding or the reasons her husband came to Australia. In the applicant's arrival interview he indicated that MJ was living in Mathagal and did not indicate she was – for whatever reason - in hiding. The applicant could have provided the information about his sister's involvement with the LTTE before the delegate made the decision and I did not accept his reasons for not providing the information sooner. The new information is – in general – vague and lacking in detail. The probative value of the new information when assessing the applicant's claims for protection is limited. I am not satisfied that there are exceptional circumstances to justify considering this new information and I have not had regard to it. 8 It is apparent from this part of the Decision Record that, in relation to the new information concerning the appellant's brother: (a) it was the third version advanced by the appellant as to how his brother died; (b) the new information contained information as to the brother's date of birth and date of death that contradicted prior information on these matters consistently given by the appellant; (c) the new information could have been provided to the delegate before the delegate made the decision under review; (d) the IAA did not accept the reason proffered by the appellant for the late disclosure of the new information; (e) the appellant had not explained the inconsistencies in relation to the brother's date of birth and date of death; (f) the above matters raised questions as to the reliability and corroborative value of the new information. 9 In relation to the appellant's sister, this part of the Decision Record reveals that: (a) the appellant's claims about his sister's involvement with the LTTE were general, vague and lacking in detail (apart from the dates of her purported service), for reasons which the IAA explained; (b) the new information could have been provided to the delegate before the delegate made the decision under review; and (c) the probative value of the new information was limited. 10 The appellant's application for judicial review before the Federal Circuit Court relied on nine grounds. Only seven grounds were pursued. Only one ground (Ground 1) is relevant to this appeal. 11 As stated by the appellant, Ground 1 of his application for judicial review was: The Authority fell into error in considering in considering the information provided by the Applicant and has misconstrued s 473DD (IAA at [11]-[13]). The Authority made jurisdictional error. Particulars (a) The Authority has not engaged with the issue of exceptional circumstances fully. (b) The Authority did not carry out meaningful review. (c) The Authority thereby committed jurisdictional error. 12 The primary judge addressed this ground, as follows: 28. In relation to ground 1, Mr Kumar submitted that there had not been a real and meaningful engagement with the new information the subject of the Authority's reasons in paragraphs 11 to 13 and accordingly, that the Authority had not engaged in an essential jurisdictional step required under s 473DD of the Act in determining whether there were exceptional circumstances to justify considering the new information. 29. The Authority gave reasons for not being satisfied that exceptional circumstances existed, sufficient to justify it considering new information about the applicant's brother and sister. The new information was contained in the submission to the Authority and none of the information had been advised before. The Authority was clearly correct to find it was new information. The Authority engaged with the new information when considering whether exceptional circumstances existed. 30. The Authority addressed the claims about the brother and observed that this was the third version put forward by the applicant about the circumstances of his brother's death. The year of the death contained in the document in support of the applicant's brother being a member of the LTTE was different to the year previously given by the applicant. The Authority did not accept the applicant's reasons for the late disclosure which did not explain the inconsistencies but led the Authority to question the reliability and probative value of the new information. 31. In respect of the claims about the applicant's sister, likewise the Authority found the details were generally vague and contradicted what the applicant had said at his arrival. The Authority found the new information had limited probative value. The Authority in those circumstances found it was not satisfied there were exceptional circumstances to justify considering the new information. 32. I accept the first respondent's submission that there is no basis to find that the Authority did not have a real and meaningful engagement with the applicant's new information in determining whether it met the criteria under s 473DD of the Act. There is no basis to find that the Authority adopted an erroneous meaning or failed to take into account the whole of s 473DD of the Act. No jurisdictional error as alleged in ground 1 is made out. The appeal 13 By orders made on 16 May 2019, the appellant was required to file a written outline of his submissions. He has not complied with that order. He is not legally represented in this appeal, although I observe that his notice of appeal bears a notation that it was prepared by a legal practitioner. The appellant was assisted at the hearing of the appeal by an interpreter. 14 I invited the appellant to address me on his grounds of appeal. He commenced by explaining that his lawyer, who had represented him below and who had prepared his notice of appeal, had passed away. 15 The appellant then said that, because his brother and his sister were involved in the LTTE, he faced a "critical situation". He argued that this had not been taken into account by the IAA which, the appellant said, without elaboration, was an error. 16 The appellant then addressed me on the political situation in Sri Lanka since elections held on 17 November 2019. He referred to the election or appointment of government ministers, and the appointment of senior army personnel, who, he said, had been accused of war crimes or crimes against humanity. He said that, since these elections, the political situation in Sri Lanka had changed and that Tamils in the northern and eastern provinces are being detained at checkpoints, and that there have been "a lot of atrocities". 17 After delivery of the Minister's oral submissions, the appellant addressed me on two further matters. First, he said that he had not, initially, revealed his involvement with the LTTE because of his fear that this would have been a reason to refuse him a protection visa. I note that this fact was considered by the IAA at [8] of its Decision Record. Secondly, he argued that the LTTE had volunteered an incorrect birth date for his brother to avoid international condemnation for conscripting minors. This submission was directed to the IAA's finding of inconsistency at [11] of the Decision Record. This explanation, advanced for the first time at the hearing of the appeal, could have been put to the IAA at the time the appellant submitted the new information. Instead, he apparently chose to rely on inaccurate information, without seeking to qualify it in any way. 18 None of the matters raised by the appellant in oral address directly addressed, let alone revealed, appealable error in the judgment below. 19 I accept the Minister's submission that, contrary to the pleading of Grounds 1 and 2, the IAA engaged carefully with the new information when considering whether "exceptional circumstances" existed. As the Minister's counsel put it, the IAA's rejection of the new information was a perfectly orthodox exercise of its functions under s 473DD. When the IAA's reasons are read fairly, there can be no basis for concluding, as asserted in Ground 1, that the IAA's primary reason for declining to consider the new information was simply the lateness of its submission. There were a number of reasons advanced by the IAA as to why "exceptional circumstances" did not exist for the reception of this information. Ground 1 is not established. As Ground 1 is not established, so too Ground 2 must be rejected. Disposition 20 The appeal will be dismissed. The appellant is to pay the Minister's costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 11 March 2020